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District Court 26 February 2016

R v Torres

[2016] NSWDC 318

Drugs
CRIMINAL LAW SENTENCE ABSCONDING NOT A STATEMENT OF FACT AT ALL

Citation: R v Torres [2016] NSWDC 318
Court: District Court of New South Wales
Date: 26 February 2016
Judge: Berman SC DCJ

Background

The offender pleaded guilty in the Local Court to two counts of knowingly taking part in the manufacture of a prohibited drug, relating to separate manufacturing operations at Lansvale and Hornsby. The offences involved the manufacture of methyl amphetamine (commonly known as ice). Following his initial proceedings, the offender absconded and lived overseas for a number of years before being extradited back to Australia to face sentence.

At Lansvale, the offender played an organisational role: he helped source finance to purchase pseudoephedrine and advised a co-offender on how to acquire and store it. His role in the Hornsby manufacture was less clear, with the Crown's evidence limited to his presence at the premises and fingerprints found there.

By the time of sentencing, the offender was 30 years old. He had experienced a difficult upbringing, including abandonment by his mother and the absence of effective parenting, which the sentencing judge accepted as relevant background context. He had also provided substantial assistance to law enforcement authorities after the offending.

  • What sentence was appropriate having regard to the objective seriousness of the offending, the offender's background, his plea of guilty, and his significant cooperation with law enforcement?
  • How should the sentencing discount for assistance (past and future) and early guilty plea be quantified?
  • How should the court treat pre-sentence custody, including a period of delayed release from a South Australian sentence attributable to the pending NSW extradition?
  • Whether special circumstances existed justifying an extended parole period relative to the non-parole period.

Decision

Berman SC DCJ imposed a combined discount of approximately 60% on the sentence that would otherwise have been appropriate, reflecting the offender's early guilty plea and his significant past and future assistance to law enforcement. His Honour acknowledged this was a very high level of discount but was satisfied it remained consistent with the underlying principle that the sentence ultimately imposed must not be unreasonably disproportionate to the objective seriousness of the offending. Of that 60% discount, 10% was attributed to anticipated future assistance, as required under the Crimes (Sentencing Procedure) Act.

Pre-sentence custody of eight months and 18 days was taken into account by backdating the commencement of the sentence to 8 June 2015. The court also factored in the delay in the offender's release from his South Australian sentence, which appeared to have been extended to allow for his extradition to New South Wales.

A finding of special circumstances was made in the offender's favour, on the basis of his rehabilitation prospects and the need to support him through a supervised period of parole to reduce the risk of reoffending. This finding supported a longer parole period relative to the non-parole period than would ordinarily apply.

The court also took the opportunity to criticise the Crown's "statement of agreed facts" as a misnomer. His Honour found the document was in substance a summary of evidence, not a statement of facts, and observed that including irrelevant details such as precise times, vehicle registration numbers, and telephone numbers obscured rather than illuminated the offender's actual criminality. His Honour noted this was not the first time such criticism had been made and indicated it would continue.

Orders Made

For each offence:
- Non-parole period of eight months and 18 days, backdated to commence 8 June 2015, expiring on the date of sentence (26 February 2016).
- The offender was ordered to be released to parole immediately.
- Head sentence of two years and nine months for each matter.
- Special circumstances found: the offender's rehabilitation prospects and the need to reduce the risk of relapse into offending.

Key Takeaways

  • A substantial sentencing discount of approximately 60% was available where an offender combined an early guilty plea with significant past and future assistance to law enforcement, provided the resulting sentence was not unreasonably disproportionate to the objective seriousness of the offending.
  • Under the Crimes (Sentencing Procedure) Act, courts are required to specify separately what portion of a combined discount relates to future assistance; in this case, 10% of the 60% total was attributed to future cooperation.
  • Absconding and living overseas will not be rewarded at sentence, but the court confirmed it must sentence the offender as they are at the date of sentence, not as they were when they should originally have appeared.
  • Berman SC DCJ criticised the Crown's "statement of agreed facts" as a misnamed document that functioned instead as a summary of evidence, with excessive procedural detail that obscured the offender's actual criminality rather than assisting the sentencing exercise.
  • Delayed release from an unrelated interstate sentence, where that delay was attributable to pending extradition to New South Wales, was treated as a relevant factor in determining the length of the NSW sentence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW)

Cases cited: No cases were cited in the judgment.